S D BAKSHI Vs. P L MORADA

JUDGEMENT

(1.) This is an application for a certificate of fitness for appeal to the Supreme Court under Article 133 of the Constitution. The usual allegation is that the case involves a substantial question of law of general importance and that in the opinion of the High Court it should be held that the said question needs to be decided by the Supreme Court.

(2.) It is abundantly clear from the observation of their Lordships in Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand, (1972) 1 SCC 898 - (AIR 1972 SC 1598 = 1972 Lab IC 864) that the word "certify" used in the Article suggests, that the High Court is expected to apply its mind before certifying the case to be fit for appeal. The proper test for determining, whether a substantial question of law of general importance is involved would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is either open to question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or by the Federal Court, or is not free from difficulty and calls for discussion of alternative issues. With this state of law before us, we have to consider the question of law involved, as it obviously affects materially the interest of parties and may even be considered to be a substantial question of law of general importance. The petitioner-appellant obtained an order of eviction on 22-3-1972. in a petition for eviction filed on 20-10-1970, Under Section 13 of the Rent Restriction Act of 1949. Long before the order of eviction was passed the Rent Restriction Act, 1971 had come into force on November 5, 1971. The said order of eviction was sought to be executed under Section 17 of the Rent Restriction Act. 1949 before a Civil Court and the objection was taken, that the said order of eviction was only executable before a Controller under Section 23 of the Rent Restriction Act, 1971. It was pleaded, that no proceeding of eviction could be sustained, because the Civil Court had no jurisdiction and any order of eviction passed by the Civil Court would be a nullity. The matter came in second execution appeal before the High Court and the said objection has prevailed on March 7, 1974. Against that order, the petitioner- appellant wants a certificate of fitness for appeal to the Supreme Court.

(3.) The question of law involved can be narrated in a simple form. It is like this: Whether an order of eviction passed after the commencement of the Rent Restriction Act, 1971 in a petition instituted before such commencement, is executable under Section 17 of the Act of 1949 or under Section 23 of the Act of 1971. That would necessarily imply the interpretation of Section 28 of the Rent Restriction Act, 1971. which makes it clear that notwithstanding the repeal of the Rent Restriction Act, 1949. any proceeding "pending" at the commencement of the new Act would continue and be disposed of in accordance with the provisions of the old Act as if the new Act had not been passed. This Court has held, that the execution proceeding was not pending at the commencement of the new Act because the order of eviction itself was passed long after such commencement and the execution case relating thereto was obviously instituted on April 12, 1973. With that finding it was held that the execution proceeding was not pending at the commencement of the new Act and as such no benefit could accrue under Section 28 and the execution could only be sought for under Section 23 of the new Act and not under Section 17 of the Kent Restriction Act. 1949. Therefore, the important question of law that arises, relates to the interpretation of Section 28, and it is of general public importance because according to the statement of the learned counsel so many landlords are affected, who have obtained eviction orders as a result to petitions filed under Section 13 of the Rent Restriction Act, 1949 and for some reason or the other they could not obtain evictions and had to resort to execution proceedings under Section 17 of that Act.